Bombay High Court

Rajesh S/O. Rajan Nair vs The State Of Maharashtra on 22 January, 2024

2024:BHC-AUG:1298


                                                   {1}            CRI APPEAL 1103 OF 2019


                            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                       BENCH AT AURANGABAD

                                   CRIMINAL APPEAL NO. 1103 OF 2019

                    .    Rajesh S/o. Rajan Nair
                         Age: 41 years, Occu.: Teacher,
                         R/o. Korai Khapar, Tq.Akkalkuwa,
                         Dist.Nandurbar.                          ....Appellant
                                                                  (Orig. Accused)
                                      Versus

                    1.   The State Of Maharashtra

                    2.   X.Y.Z.                                   .....Respondents
                                                    .....
                                                   WITH
                                  CRIMINAL APPLICATION NO. 3284 OF 2019
                                           IN APPEAL/1103/2019


                    .    Rajesh S/o. Rajan Nair
                         Age: 41 years, Occu.: Teacher,
                         R/o. Korai Khapar, Tq.Akkalkuwa,
                         Dist.Nandurbar.                          ....Applicant
                                                                  (Orig. Accused)
                                      Versus

                    1.   The State Of Maharashtra                 .....Respondent

                                                   .....
                    Advocate for Appellant - Applicant : Mr. Vikrant P. Raje
                    APP for Respondent no.1 -State : Mr.N.D.Batule
                    Advocate for Respondent no.2 : Mr.Z.H.Farooqui
                                                   .....

                                        CORAM : ABHAY S. WAGHWASE, J.

                                        RESERVED ON  : 09 JANUARY, 2024
                                        PRONOUNCED ON : 22 JANUARY, 2024
                                   {2}             CRI APPEAL 1103 OF 2019


JUDGMENT :

1. By way of instant appeal convict original accused is assailing

the judgment and order passed by Additional Sessions Judge,

Shahada in Sessions Case No.51 of 2016 holding appellant guilty for

offence under Section 376(2)(m) of the Indian Penal Code (IPC) and

Section 6 read with 5 of the Protection of Children from Sexual

Offences Act (the POCSO Act) and to pay fine respectively.

FACTS LEADING TO THE TRIAL ARE AS UNDER

2. Akkalkuwa Police Station chargesheeted appellant for above

offence alleging that victim who was studying in 5 th standard, went

to attend tuition to the accused, a Tutor, on 12-09-2016. According

to prosecution, after making other children leave, victim was directed

to stay back by accused on the pretext of giving homework. When

everybody left, he shut the door, remove his own clothes and directed

victim also to get undressed. When she refused, he forcibly removed

her clothes, made her sleep on the cot, moved and felt his hands over

her breast, private parts and tried to insert his male organ in her

private part.

3. The girl returned home and seeing her condition, on being {3} CRI APPEAL 1103 OF 2019

asked, she narrated the act of accused and therefore, Police was

approached and PW2 mother lodged complaint exh.14. After

statement of victim was recorded, crime was registered and finally

investigated by PW8 Bhavsar (API), who after gathering sufficient

evidence filed challan and accused was tried by Additional Sessions

Judge, Shahada, who permitted prosecution to adduce evidence.

Evidence so adduced was appreciated and learned trial Judge held

the charges proved and convicted appellant resulting into challenge

by way of instant appeal.1

SUBMISSIONS

On behalf of appellant :

4. Learned Counsel for appellant pointed out that it is apparently

false implication on account of some rivalry between two education

institutions. It is submitted that complaint is narrated by somebody

else and is merely signed by mother of the victim. That victim has

been tutored to name accused. He would submit that very evidence

of medical expert belies the accusation of rape. That even there are

material inconsistencies in the testimony of victim and her mother

coupled with the lapses and lacunas on behalf of investigating

machinery. Resultantly, it is his submission that there is no sufficient {4} CRI APPEAL 1103 OF 2019

corroboration and case being not proved beyond reasonable doubt,

he submits that appeal deserves to be allowed by setting aside the

impugned judgment.

On behalf of State :

5. Supporting the judgment under challenge, learned APP would

point out that victim is admittedly a child and hence a minor. He

would strenuously submit that there is apparently criminal breach of

trust by accused, who is a teacher and to whom victim was sent by

her parents for education. However, she has been victimized in his

house by the accused. Learned APP pointed out that victim's

testimony is itself sufficient to bring home the charges. He pointed

out that she has narrated each and every act indulged into by

accused after closing the door. She has faced cross-examination and

it has remained unflinched, thereby keeping her testimony intact.

6. He next submitted that mother of victim has shortly met the

victim and had noticed the condition of her daughter and victim

daughter promptly narrated the ordeal faced by her and she was

thereafter taken to hospital and Police has been approached on the

same day. Therefore, he submits that there is prompt lodgement of

complaint.

{5} CRI APPEAL 1103 OF 2019

7. He further submitted that victim's evidence is fortified by

medical evidence, who has testified about receiving history and on

examination report was issued. Learned APP, at this juncture, would

strenuously submit that mere absence of injuries itself would not

negate the case of rape and therefore, even if no injuries are noticed

by PW4 Dr.Balapure, it is his submission that it is inconsequential as

according to him, very testimony of victim itself is clear about

commission of offence of sexual intercourse. He added that

considering the age of child, her evidence is required to be assessed

and analyzed.

8. Lastly, he submitted that there is clinching incriminating

material. The same has been correctly appreciated by learned trial

Judge. According to him, law on rape is correctly applied and so he

prays to dismiss the appeal for want of merit.

9. Being first appellate Court, this Court is required to re-

examine, re-appreciate, and re-analyze evidence adduced by the

prosecution to find whether there is merit in the appeal.

Consequently, evidence on behalf of prosecution in the trial Court is

visited and subjected to re-appreciation.

                                       {6}          CRI APPEAL 1103 OF 2019


                     PROSECUTION WITNESSES

10. It is noticed that following witnesses were examined by the

prosecution in support of its case.

PW1 victim at exh.8.

PW2 mother of victim at exh.12

PW3 Dr.Mangala Yuvraj Tungar, Medical Officer, who physically

examined victim and issued certificate / report exh.23 and 24.

PW4 Dr.Vivekanand Baburao Balapure, is a Medical Officer, who

physically examined accused.

PW5 Darshana d/o. Gemu Gavit (LPC) accompanied victim when her

statement was recorded and she had taken victim for the medical

examination at Civil Hospital, Nandurbar.

PW6 Ganesh Madhukar Nhayade is API, who conducted part

investigation and subsequently handed it over to other Police Official.

PW7 Vijaya d/o. Bhimsing Vasave, is Head Mistress of School of

victim.

PW8 Rajendra Dagadu Bhavsar, is the Investigating Officer.

ANALYSIS

11. At the outset, after hearing learned Counsel for appellant and

on taking survey of the prosecution evidence, it needs to be

mentioned that there is no serious challenge regarding age of the {7} CRI APPEAL 1103 OF 2019

victim. Therefore, there is no hesitation to hold that victim was a

child at the time of alleged occurrence.

12. On going through the chargesheet, it transpires that charge

was framed against accused vide exh.2 for commission of offence

under Section 376(2)(i) read with Section 375(b) of the IPC and

under Section 6 read with Section 5 of the POCSO Act.

13. However, on appreciation of evidence learned trial Court has

recorded guilt for commission of offence under Section 376(2)(m) as

well as for offence under Section 6 read with 5 of the POCOS Act.

Resultantly, it is desirable to reproduce both above provisions for

proper comprehension.

Section 376(2)(m) of the IPC is as under :

"Section 376. Punishment for rape - (1) .... (2) Whoever, -

(m) while committing rape causes grievous bodily harm or maims or disfigures or endangers the life of a woman."

Section 6 of the POCSO Act is as under :

"6. Punishment for aggravated penetrative sexual assault - Whoever, commits aggravated penetrative sexual assault, shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for remainder of natural life of that person and shall also be liable to fine, or with death."

{8} CRI APPEAL 1103 OF 2019

14. Now having reproduced the provisions for which there is

conviction, this Court proceeds to deal with the substantive evidence

on behalf of prosecution. Again for proper comprehension, the

testimonies of PW1 victim, PW2 her mother and PW3 Dr.Tungar,

medical expert, who had examined victim is required to be dealt and

is so reproduced as under:

On going through the testimony of PW1 victim at exh.8, it is

emerging that learned trial Judge has put questions to the girl, who

gave her age as 12 years. Questions are regarding where she was on

12-09-2016 and she answered that she was in tuition class. To next

question to where she had gone, she answered and named accused

and further answered that as her health was not proper, she went to

tuition at 04:30 p.m. On being asked as to who all were with her in

the tuition, she had named five children and to a question as to what

happened thereafter, she has answered that after giving homework,

accused sent other children home and to further question, she

answered that she stopped in the tuition on being asked by accused

and on query as to what happened thereafter, she has answered that

accused told her that he is giving homework to her. Accused closed

the door of the room. He removed his clothes and asked her to

remove her clothes. Then to further question what happened {9} CRI APPEAL 1103 OF 2019

thereafter, she has answered as followed :

"Answer - As I did not remove he removed my dress forcibly. He slept me on bed. He touched his hand on my chest and urinal place. Then he touched his urinal place and my urinal place. Then Nair sir pressed my mouth behind the door. After asking to boys my mother came there. My mother knocked the door and at that time sir told that Nikita is not there. Then, my mother asked Himanshu to knock the door. Then, my mother pushed the door and took me outside."

15. To further question she stated that they went to her Dadi

Vimalabai and her parents went to Police Station, Police came,

inspected the house of accused. Lady Police asked her what

happened and she narrated and it was reduced in writing in Marathi

language. She stated that she narrated them in Hindi. She also

answered about causing signature. She had identified her signature

on exh.9 and 10.

While under cross-examination, she is asked about her parents,

grandparents, about her community, name of teacher, which subject

he taught, strength of students for the tuition, timing of tuition.

Questions are put about her uncle, who is said to be a leader, nature

of business, she appearing in Court and giving statement in

Akkalkuwa Court. In paragraph no.7 of the cross, after above

questions, she has denied that it did not so happen that accused {10} CRI APPEAL 1103 OF 2019

asked her to stop, close the door, removed his own clothes, then

asked her to remove her clothes, that he did not touch her private

parts or body or mouth, urinal part and that she falsely depose about

her mother coming in search of her and knocking the door.

Therefore, above testimony of victim clearly shows that there is

virtually no serious dispute about actual alleged act by accused on

victim.

16. PW2 mother of victim has apparently received information

from PW1 victim, her daughter and she had met victim after the

occurrence, whatever information she has and whatever she has

narrated is apparently the information passed to her by her daughter

and she has reproduced it.

17. The other crucial witness is medical expert, who had occasion

to physically examine victim i.e. PW3 Dr.Tungar. Her testimony in

witness box, which is at exh.21 is reproduced in verbatim and the

same is as under :

1] On 13-09-2016 I was working as casualty medical officer at Civil Hospital, Nandurbar. On that day the victim was brought to me by LPC Darshana Gavit of Akkalkuwa Police Station for medical examination. A letter for examination of the {11} CRI APPEAL 1103 OF 2019

victim was also submitted to me. I made signature on copy of the letter and retained the original with me. The copy of the letter from record now shown to witness. It bears my signature about receipt of letter. It is marked at Exh.22. Accordingly I examined victim. At the time of examination the age of victim was 11 years. She was female child. She was brought to me at 01:30 p.m. The mother of victim was with her. She gave consent for examination of the victim. For the identity purpose I obtained the thumb impression of victim or report. The mother of victim told the history of assault as sexual assault on victim on 12-09-2016 at 04-30 to 04-00 p.m. by her tuition sir. 2] I examined the victim. I found no injuries over body and hymen of the victim. The observations of my examination are noted by me in the examination report. The examination report now shown to witness. It bears my signature. It is in my handwriting , its contents are correct. It is at Exh.23. On the basis of the report I also issued the examination certificate on same day. It is in my handwriting. It bears my signature. Its contents are correct. It is at Exh.24.

3] If anyone touch the finger without force to the private part of the victim, then there may no be injury or redness. The hymen will remain intact."

Therefore, according to medical expert, there were no injuries

on the person of victim or hymen when victim was examined on

13-09-2016 i.e. next day of occurrence.

18. On careful and meticulous re-examination of testimony of {12} CRI APPEAL 1103 OF 2019

victim reproduced in aforesaid paragraph goes to show that after

disrobing victim, accused made her sleep on the bed and has

"touched" her chest and urinal place. He "touched" his own urinal

place and her urinal place. He pressed her mouth behind the door.

Even the translated version / Marathi version is as under i.e. answers

to relevant question as to what happened to her after he closed the

door, removed his clothes and removed her clothes, it is noted -

ßeh dk<ys ukgh- rsaOgk R;kauh tcjnLrhus ek>k Mªsl dk<yk- R;kauh eyk iyaxkoj >ksifoys- R;kauh ek>s Nkrhoj o y?kohP;k tkxsoj gkr ykoyk- uarj R;kauh ek>h fi'kkcph tkxk o R;kaph fi'kkcph tkxk Vp dsyh- uarj uk;j ljkauh njokT;kP;k ekxs ek>s rksaM nkcys- eqykauk fopkjysoj ek>h vkbZ vkyh- Ekk>s vkbZus njoktk BksBkoyk- rsaOgk ljkauh lkafxrys dh] fudhrk ukgh vkgs- uarj ek>s vkbZus ek÷;k fgeka'kqyk njoktk [kV[kVk;yk ykoyk- uarj ek÷;k vkbZus njokyk <dyyk o eyk ckgsj dk<ys-Þ

What can be gathered from above testimony is that accused

had allegedly touched breast, place of urinal of the victim and even

his own urinal place. This is the act which is attributable to the

accused from the testimony of victim. As stated above on

examination of victim on next day, PW3 Dr.Tungar has not noticed

any injury to the body or hymen and Doctor has also noted history

which was said to be narrated by her mother.

19. Comparing the above testimony of PW1 victim and PW3 {13} CRI APPEAL 1103 OF 2019

Doctor, with essential ingredients required for attracting Section

376(2)(m), it is conspicuously emerging, that said, required

ingredients are patently missing in the evidence of victim as well as

Doctor. What 376(2)(m) requires is " while committing rape causing

grievous bodily harm or maims (which according to Oxford English

Dictionary means "wound or injure (someone) so that part of the

body is permanently damaged) or disfigures or endangers the life of

a woman."

Here taking into account the above discussed legal

requirements, it is noticed that none of the ingredients required for

attracting above offence are available in the testimony of PW1 victim

and PW3 Dr.Tungar.

On what foundation above offence is held by the learned trial

Judge to be established is not elaborated. There is no reasoning

supplied for holding above offence to be proved.

20. The second offence for which appellant is held guilty is Section

6 read with 5 of the POCSO Act. However, again on carefully

considering the testimony of PW1 victim and PW3 Dr.Tungar, medical

expert, which are crucial, it is emerging that even there is no material

suggesting aggravated penetrative sexual assault. As to what {14} CRI APPEAL 1103 OF 2019

amounts to aggravated penetrative sexual assault is also dealt and

defined in the POCSO Act and the same is as under:

"3. Penetrative Sexual assault : - A person is said to commit "penetrative sexual assault" if -

(a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or

(b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or

(c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or

(d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person."

21. On careful analysis of above definition provided in the Statute

i.e. clause (a),(b),(c),(d), in the considered opinion of this Court,

here there is no allegation of penetration into the vagina, mouth,

urethra, anus nor there is allegation of insertion of any object not

being penis into above referred parts of the child and even there are

no allegations of manipulating any part of the body of child which

would cause penetration in said part or made the child to do it with {15} CRI APPEAL 1103 OF 2019

accused. Even there are no allegations that accused applied his

mouth to the private part of child or made the child to do it.

Requirement of penetration is patently missing.

Resultantly, even as like Section 376(2)(m) of the IPC,

necessary ingredients for attracting Section 6 read with Section 5 of

the POCSO Act also are conspicuously missing from the testimony of

the victim.

Therefore, even said charge cannot be said to be brought

home.

22. As stated above learned trial Judge has not offered any

reasoning as to why and how and on what basis above offences are

made out. Apparently mere discussions are made on the manner of

appreciation of evidence on rape on a child, but learned trial Court

seems to have lost sight of availability of essential ingredients which

are necessary for recording the guilty.

23. However, taking into account the testimony of the child and

testing it with legal requirements, in the considered opinion of this

Court, definitely offence under Section 7 of the POCSO Act is can be

said to be committed by the accused. Said Section deals with sexual {16} CRI APPEAL 1103 OF 2019

assault and the Act provides for meaning of sexual assault, which is

as under:

"7. Sexual assault - Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault."

The essential ingredients of the offence of "sexual assault" are as

under:

"A. Accused, with sexual intent touches

(i) the vagina or a child aged below 18 years; or

(ii) the penis of a child aged below 18 years; or

(iii) the anus of a child aged below 18 years; or

(iv) the breast of a child aged below 18 years; or

B. Accused with sexual intent makes the child aged below 18 years to touch his or any other person's

(a) vagina; or (b) penis; or (c) anus; or (d) breast; or

C. Accused with sexual intent does any other act besides those mentioned above which involves physical contact without penetration."

24. The Hon'ble Apex Court presided by Hon'ble Three Judges,

while delivering judgment in the case of Attorney General of India v.

{17} CRI APPEAL 1103 OF 2019

Satish and another in Criminal Appeal No.1410 of 2021 reported in

(2022) 5 SCC 545, has elaborately but lucidly and succinctly dealt

with the words and phrases like "sexual assault"; "sexual intent";

discussed the dictionary meanings of words "touches"; "physical

contact" and has thereby unanimously held as discussed hereunder :

"34. Now, from the bare reading of Section 7 of the Act, which pertains to the "sexual assault", it appears that it is in two parts. The first part of the section mentions about the act of touching the specific sexual parts of the body with sexual intent. The second part mentions about "any other act" done with sexual intent which involves physical contact without penetration. Since the bone of contention is raised by Ld. Senior Advocate, Mr. Luthra with regard to the words "touch", and "Physical Contact" used in the said section, it would be beneficial first to refer to the dictionary meaning of the said words.

35. The word "touch" as defined in the Oxford Advanced Learner's Dictionary means "the sense that enables you to be aware of things and what are like when you put your hands and fingers on them". The word "physical" as defined in the Advanced Law Lexicon, 3rd Edition, means "of or relating to body..........." and the word "contact" means "the state or condition of touching; touch; the act of touching......". Thus, having regard to the dictionary meaning of the words "touch"

and "physical contact", the Court finds much force in the submission of Ms. Geetha Luthra, learned senior Advocate appearing for the National Commission for Women that both the said words have been interchangeably used in Section 7 by {18} CRI APPEAL 1103 OF 2019

the legislature. The word "touch" has been used specifically with regard to the sexual parts of the body, whereas the word "physical contact" has been used for any other act. Therefore, the act of touching the sexual part of body or any other act involving physical contact, if done with "sexual intent" would amount to "sexual assault" within the meaning of Section 7 of the POCSO Act."

25. Bearing in mind the above observations and revisiting the act

allegedly indulged into by appellant and narrated by victim herself,

in the considered opinion of this Court, an offence of sexual assault is

apparently made out calling for awarding punishment as provided

under Section 8 of the POCSO Act.

26. In the totality of the circumstances, here accused appellant,

who was engaged as a tutor to impart education, has victimized a girl

of 11 years, who had approached him to gain knowledge. He has

made her stay back, closed the door, and has undressed her. Such

circumstances clearly show that he had sexual intent. His act of

touching her breast, urinal place of the girl as well as his own, leaves

no manner of doubt about his sinister motive. Offence of sexual

assault is clearly made out and therefore, he is liable to be held guilty

for such offence.

{19} CRI APPEAL 1103 OF 2019

27. Appellant was tried and convicted by the learned Additional

Session Judge, Shahada by order dated 14-06-2018 and since then he

is in prison. Now, his conviction under Section 376(2)(m) of the IPC

and under Section 6 read with 5 of the POCSO Act has been set aside

and he is held guilty for offence under Section 7 read with Section 8

of the POCSO Act. Section 8 of the POCSO Act provides punishment

in the range of 3 years to 5 years. Resultantly, considering the

circumstances in which incident has taken place, he is liable to suffer

maximum sentence of five years. Accordingly, I proceed to pass

following order :

ORDER

(i) Criminal Appeal No.1103 of 2019 is partly allowed.

(ii) The conviction and sentence awarded by the Additional Sessions Judge, Shahada in Sessions Case No.51 of 2016 on 14-06-2018 to appellant Rajesh S/o. Rajan Nair for the offence punishable under Section 376(2)(m) of the IPC and Section 6 read with 5 of the the POCSO Act, stands set aside.

(iii) Instead, appellant Rajesh S/o. Rajan Nair is hereby convicted for commission of offence punishable under Section 7 read with Section 8 of the POCSO Act and is hereby sentenced to suffer rigorous imprisonment for five years.

                                     {20}              CRI APPEAL 1103 OF 2019


      (iv)    Order of the trial Court as regards to payment of fine
      amount is maintained.